Rest area shooting conviction upheld

SANTA FE >> New Mexico's highest court on Monday upheld the murder conviction of the rifleman who shot a young traveler at a border rest stop.

In a 5-0 decision, the state Supreme Court affirmed five of the six convictions against the shooter, Irvin Ramirez. It vacated Ramirez's conviction for armed robbery to avoid a violation of his right against double jeopardy.

Ramirez, now 20, is serving a sentence of life plus 10 years at the Penitentiary of New Mexico. He will be eligible for parole after serving 30 years.

Ramirez was convicted of murdering Adam Espinoza the night of Jan. 4, 2010, at the rest stop in Anthony on New Mexico's southern border.

Espinoza, who was 20, had driven much of the day and planned to sleep for a few hours in his Mitsubishi. He was heading from San Antonio, Texas, to Southern California, where he planned to live with his older sister, Genevieve.

He never made it. Prosecutors said Ramirez and and two other members of the Tenor street gang were waiting at the rest stop, ready to rob whoever pulled in.

Javier Orozco, at 15 the youngest of the gang members, tapped on Espinoza's window under the guise of bumming a cigarette.

Ramirez, carrying a .22-caliber rifle, then moved in to carry out the robbery. With Orozco and Jorge "Phatboy" Murillo standing by, Ramirez demanded money and the belongings packed in Espinoza's car.

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"You'll have to kill me," Orozco quoted Espinoza as saying.

A jury found that Ramirez did just that by firing three shots from the rifle into Espinoza's head, abdomen and arm.

In appealing his convictions directly to the Supreme Court, Ramirez argued that then-District Judge Jerald Valentine of Dona Ana County gave the jury flawed instructions, and that his attorney made no objection, leaving him with inadequate legal representation.

The Supreme Court found some merit in his argument.

Both the state attorney general's staff, which fought to uphold Ramirez's convictions, and Ramirez's appellate lawyer said the jury received two improper instructions for the felony murder charge.

Even so, the Supreme Court found that neither mistake constituted a fundamental error under New Mexico law.

"In addition, we note that the jury received the correct felony murder instruction when it was instructed that it could find Ramirez guilty as an accomplice," the Supreme Court said. "We are satisfied that the jury could not have been confused by the instructions and ... we conclude that the jury found all essential elements of the crime beyond a reasonable doubt."

After Ramirez shot Espinoza, he and the other two gang members stole the belongings packed in Espinoza's car.

Ramirez, Orozco and Murillo took a flat-screen television set, video game player, iPod, cell phone, laptop computer and two saxophones, one of which belonged to Espinoza's sister.

Ramirez and the others then stuffed Espinoza's body in the trunk of his car. They doused the vehicle with gasoline, maneuvered it into an arroyo and set it on fire.

Most of Espinoza's body was destroyed by flames and searing heat. Investigators confirmed his identity through dental records.

"This court has held that a defendant may not be convicted of a felony murder and the predicate felony," Justice Edward L. Chavez wrote in Monday's decision.

Conviction on both amounts to double jeopardy, Chavez said. For that reason, the Supreme Court vacated Ramirez's armed robbery conviction.

In Ramirez's case, the trial judge did not impose a sentence for armed robbery but failed to void the conviction. So even with the Supreme Court vacating the armed robbery conviction, Ramirez's sentence did not change.

As for Ramirez's claim that his lawyer was ineffective, the Supreme Court said: "This is one of those rare cases. The errors by Ramirez's counsel simply do not undermine confidence in the outcome of his case."

Murillo and Orozco also are in prison for Espinoza's killing. Murillo was sentenced to 38 years for second-degree murder and Orozco to 18 years for felony murder. Milan Simonich, Santa Fe Bureau chief of Texas-New Mexico Newspapers, can be reached at 505-820-6898. His blog is at nmcapitolreport.com.